News stories from around the nation identifying gun control as a tripwire issue dividing conservatives and liberals don’t surprise. The events of September 11 have heightened the resolution of the “individual rights” interpreters of the Second Amendment. These are distinguished from the “collective rights” faction. The former stare the language in the face and come away with a reading different from that of the collective crowd. At issue is the interpretation of a single sentence: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Opponents of comprehensive gun-control laws view this as a constitutional guarantee of the right of Americans to own guns. An easy way to put it is that they view the amendment as if the initial clause were irrelevant, leaving us simply with a guarantee against federal gun control that challenges the right of citizens to own weapons. By contrast, of course, there are those (roughly speaking, the nation’s intelligentsia) who insist that the Second Amendment goes no further than to say that Congress may not legislate against the right of individual states to organize militias of arms-bearing citizens.
The learned arguments go on and on. The gun-control lobby has suffered two severe blows in the recent period. One of them is that Professor Laurence Tribe of Harvard, much esteemed by American liberals, in part because of his enthusiasm for abortion rights, having examined the historical documents, opines that indeed the people who framed the Bill of Rights intended to guarantee individual, not merely collective, gun-ownership rights. And the Fifth Circuit ruled in the same direction in United States v. Emerson.
What ripened in the aftermath of September 11 was a sensibility—of the individual citizen’s dependence, at the margin, on his own resources.
As with other contentions requiring constitutional interpretation, the division over gun control is only one part historical (What did the framers intend?). Another, more significant part, is political (What does the American public want?). But it’s better, and safer, to ask the question: What do the American people reasonably want? It probably could be established by polling that the American people would be happy to hang anybody who burns the U.S. flag, but such sentiments are not likely to be codified.
The assertion of a right at ridiculous lengths—the absolutization of it, in the manner of the American Civil Liberties Union—is a way of undermining it. If the Constitution says you can say anything you want under any circumstances, then you can shout Fire! in a crowded movie theater. If you have the right to remain silent in all circumstances, then you can decline to give testimony vital to another citizen’s freedom and rights. If you insist that a citizen has the right to own a machine gun, you discredit his right to own a pistol or a rifle.
What ripened in the aftermath of September 11 was a sensibility—of the individual citizen’s dependence, at the margin, on his own resources. George Will put it pithily (as ever) when he asked, Call for a cop, an ambulance, and a pizza, and ask which is likelier to get to you first. A rifle in the closet wouldn’t have been useful against the swooping 767s that struck the Twin Towers. But a sense of the implications of chaos and anarchy was sharpened. An analyst 20 years ago remarked that an 82-year-old couple living in an apartment in the Bronx, after twice being assaulted, found it possible to sleep at night only after acquiring a pistol and advertising its presence on a note pinned to the outside door.
Both sides will find it useful to temper extreme expressions of their positions. But it is certainly true that at this moment it is likelier that congressmen running for election or reelection in November will not press the collective interpretation of the Second Amendment.